Friday, March 14, 2014
Joe Sax, David Sive, Pete Seeger: R.I.P.
Joe Sax, Dave Sive, and Pete Seeger, all founders of the Age of the Environment, recently passed from the scene. Joe Sax, the law professor, Dave Sive, the lawyer, and Pete Seeger, the singer, were all environmentalists before the environment became a cause. I was originally going to write about Joe Sax, who died last Sunday, but then Dave Sive followed a few days later. The two were often a pair working together, one the academic theorist and the other the legal advocate. Professor Sax taught at Colorado from 1962-1966, Michigan from 1966-1986, and then at Berkeley. I was fortunate to learn from Professor Sax at Michigan. I always viewed Joe as a mentor, but so do hundreds of other law professors and lawyers. That was his greatness as a teacher. He was a true teacher; Joe Sax gave not only his knowledge, but of himself to his students over a span of five decades. He supported his former students, who were no longer students but colleagues. Indeed, he treated his students as colleagues and not as students. That was also his greatness as a person. Joe Sax was not just a pioneer of Environmental Law, but he was also the most formative in its creation. Professor Sax and Professor Bill Rodgers of the University of Washington transformed from the traditional Natural Resources Law into the new Environmental Law. They were by no means the only Environmental Law pioneers in the legal academy, but they brought the most to the field. Another star was the late Dean David Getches of the University of Colorado School of Law, who died unexpectedly a few years ago, and a friend on mine, Professor Bob Beck of Southern Illinois, a water law specialist who also died a few months ago. Joe Sax was the visionary, the legal theorist who crafted new theories for the Environmental Age. His 1970 Michigan Law Review article, "The Public Trust in Natural Resource Law: Effective Judicial Intervention," is probably the most influential article in Environmental Law. He traced the public trust doctrine back to ancient Roman Law roots, and posited it as a modern source of protecting our water resources. I’ve heard him say: “Only that which should be on water should be on water.” The California Supreme Court a quarter century later adopted his thesis to radically reform California Water Law and preserve Mono Lake. It was exhilarating to take three courses from him four decades ago at the onset of the Environmental Age. We were pioneers, but Joe Sax was the lead. He didn’t teach dry law, but comprehensively presented the broad socio-ecological problems, and then applied the existing law, followed by proposed changes in the law. You saw the full picture. He campaigned against DDT, an early environmental battle. DDT is still banned in the United States. Joe believed in citizen participation in judicial suits to protect the environment. We call it “standing,” which is taken for granted today, but Professor Sax paved the way. He explained the problems with the Colorado River allocation, which problems are well understood today, but which few could see in 1971. He explained Con Ed’s desire for the Storm King Mountain pumped storage facility, the Northeast Blackout of 1965, and the utility’s travails with “Big Allis.” He painted pictures in his class with his incredible breath of knowledge. We are fortunate in the Environmental Law and Natural Resources Law fields that we have few braggarts or prima donnas. Joe Sax was definitely not one. He gave freely of his time and knowledge to colleagues. Dave Sive is credited with coining the phrase “Environmental Law.” He pioneered the field, starting with famous cases to preserve the Hudson River. He blocked the Storm King pumped storage station and the Hudson River Expressway, and played a role in blocking the Westside Freeway. He litigated the merits and “standing.” He argued that “aesthetics” could provide standing in environmental cases as a legally protected value, a position accepted by the Supreme Court. His early “Scenic Hudson Preservation Council” cases are still taught to law students. He used New York’s Forever Wild Clause to protect the Adirondacks and Catskills. Dave was more than a litigator and advocate. He was a founder of the Natural Resources Defense Council and Friends of the Earth as well as the Environmental Law Institute (ELI), of which he was a director from 1970-1992 and then Chair of the ELI Board of Directors from 1972-1976. He also served as a director of the Sierra Club. Dave Sive also taught Environmental Law at a number of law schools, but especially at Pace. He published numerous articles in the field. Pete Seeger, best known as one of America’s greatest folk singers, was also a pioneering environmentalist. He was disgusted in the early 1960’s by the murky, polluted, fish killing Hudson River. His inspiration was to launch the sloop Clearwater in 1969 to educate the public. The campaign was a success. The stripped bass have returned to the Hudson. Malvina Reynolds wrote in 1962 a song “Little Boxes,” about the “ticky tacky little boxes” of Daly City, outside San Francisco. Pete Seeger had a hit in 1963 with the song. Turn Turn, Turn, Joseph Sax, David Sive, Pete Seeger.